ex-MASN, USN
ND06-01109

Current Discharge and Applicant’s Request:

Application Received:  				20060823
Reason for Separation:				misconduct – COMMISSION OF SERIOUS OFFENSE
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	tsc great lakes, il

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1. Isolated incident not warranting general discharge
						2. Post-service conduct

Decision:

Date of Decision:					20070719
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20020209 - 20020324 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20020325
Years Contracted:  				;  
Date of Discharge:				20050826
Length of Service:				03  Yrs  05  Mos  02  Days (does not exclude lost time, if any)
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						48
Highest Rate/Rank:				MA3

Performance Evaluation Averages (number of marks):
		Performance:  3.0 (3)	Behavior:  2.7 (3)		OTA:  2.83

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL; OVERSEAS SERVICE RIBBON; PISTOL SHARPSHOOTER; RIFLE MARKSMAN RIBBON; GLOBAL WAR ON TERRORISM SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050208:	NJP for violation(s) of UCMJ:
	Article 111:  Drunken or reckless operation of vehicle.
	Award:  Forfeiture of $500.00 for 2 months, reduction to E-3.
	No indication of appeal in the record.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

Record not available.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOTIFICATION PROCEDURE*
Date Notified:					20050304
Reason for Discharge				MISCONDUCT - 
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20050318
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			  (20050317)
GCMCA Review				

Commanding Officer Recommendation (date):	 (UNDER HONORABLE CONDITIONS (20050414)
Separation Authority (date):	COMMANDER, NAVY REGION, EUROPE (20050610)
Narrative reason directed:				MISCONDUCT - 
Characterization directed:	
Date Applicant Discharged:			20050826

*Service Record did not contain discharge package.  Data extracted from Applicant’s document submission, which the Board determined to be reliable.

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				23
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					1
	Employment:					1
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				25

       Description of Other Documentation:

Discussion

Decisional Issues:

Issue 1 ().  Despite a servicemember’s otherwise meritorious record, certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 111 is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial.  In reviewing the Applicant’s overall service record, the Board found no inequity in the characterization of his service as general (under honorable conditions) in light of his documented misconduct and other negative aspects of his performance as indicated in his performance evaluations.  Relief is not warranted on this issue.

Issue 2 ().The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided one letter of recommendation from his employer and a transcript as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced detailed evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.   

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 
1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, Drunken or reckless operation of vehicle, aircraft, or vessel.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

				Secretary of the Navy Council of Review Boards
				Attn:  Naval Discharge Review Board
				720 Kennon Street SE Rm 309
				Washington Navy Yard DC  20374-5023